School Transportation News Magazine | September 2009
[Analysis] ADA Changes Will Affect More Than
the ADA: Here’s a Look at Section 504 Part II By Peggy A. Burns, Esq.
Te Americans with Disabilities (ADA) Amend-
ments Act of 2008, effective on Jan. 1, 2009, will have a notable impact on employment and work- place procedures [See STN June 2009, “Revised ADA Can be a Bitter Pill to Swallow for Resource-Starved Transporters”]. But the impact won’t end there. On March 27, 2009, the Office for Civil Rights
(OCR) issued revised “Frequently Asked Questions About Section 504 and the Education of Children with Disabilities.” Tis informative document con- firms, for the most part, well-established answers to basic questions about “the other” law that most di- rectly affects students with disabilities.
“ If a student does have an impairment that substantially limits his or her ability to access education, the school district must make an individualized determination of the child’s need for transportation, appropriate for that child, at no cost to the parent. “
Te ADA has always mirrored much about Section
504, and now Section 504 will be in lock-step with the ADA. Although more subtle and much less her- alded than changes to the ADA, changes to Section 504 of the Rehabilitation Act of 1973 will impact the transportation of students with disabilities.
WHAT IS SECTION 504? Section 504 protects an individual with a disabil-
ity from discrimination by public entities that receive federal funding. Te U.S. Department of Education’s Section 504 regulation is enforced by OCR and is in the federal code of regulations at 34 CFR 104. As it has been interpreted by the OCR and the
courts, the duty to avoid discrimination includes the responsibility to afford students with disabili- ties equivalent access to, and opportunity to par- ticipate in, all programs operated by a public school system. Section 504 speaks specifically to “nonaca- demic services,” including school transportation.
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Some of the issues which often come under scru- tiny under this law include, but are not limited to:
• Te method used to transport a student with a disability.
• Time-related issues, like length of ride and bus schedules that intrude into the school day.
• Transportation to co-curricular and extra-cur- ricular activities.
• Discipline of students.
WHAT DOES THE ADA HAVE TO DO WITH SECTION 504? Title II of the Americans with Disabilities Act of
1990 prohibits discrimination based on disability in public entities. OCR — long the discrimination au- thority that enforces Section 504 regulations — is also the agency designated by the U.S. Department of Justice to enforce the regulation under Title II with respect to public educational entities and public li- braries. Te Title II regulation is in the federal code of regulations at 28 CFR 35. During the process of enacting the ADA Amend-
ments, members of the Senate indicated that they did not anticipate that OCR would need to extensive- ly change its current guidance and regulations with respect to the provision of educational services to students with disabilities. Te ADA Amendments Act of 2008 was intended specifically to wipe out nearly 10 years of Supreme Court rulings that narrowed the protection against discrimination available to employees. On the other hand, senators noted their belief that most schools currently operate in a man- ner consistent with the original congressional intent of Section 504 and the ADA and, therefore, would be minimally affected by the Amendments. In fact, OCR’s FAQ document states that “Te Amendments Act does not required ED to amend its Section 504 regulations.” Despite the lack of anticipation that change will
be necessary, and the absence of requirement that change in Section 504 regulations need to be made, hearing officers and judges are likely to scrutinize school district behavior for adherence to the broad protections for
individuals with disabilities now
spelled in the revised ADA. Here are some potential impacts that school transporters must be ready for:
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